CONTRACTING WITH RECOVERY ACT FUNDS

PURPOSE:This
Procurement Information Circular (PIC) is issued to provide guidance to the
procurement community on the implementation of the American Recovery and
Reinvestment Act (Recovery Act) of 2009, PL 111-5.This guidance is applicable to contracts. Grants are addressed under a separate Grant
Information Circular (GIC
09-03.)

This guidance is supplemental to Agency guidance on implementation of the
Recovery Act.Contractors, as recipients
of Recovery Act funds, have specific tracking and reporting requirements which are
different from and should not be confused with the tracking and reporting
requirements NASA, as a Federal Agency, has pursuant to the Recovery Act.

BACKGROUND:On February 17, 2009, The President signed
the Recovery Act (http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h1enr.pdf).

The Act’s
purpose is to provide a stimulus to the US economy, and, among other
provisions, it provides funds to Federal agencies for use on contracts and
assistance agreements.

The
Administration empowers agencies to exercise their discretion and judgment in
implementing the Act and stresses responsible management.Agencies are to ensure that Recovery Act funds
are expended for projects that promote economic recovery and are not used for
imprudent projects.For example, the
guidance specifically forbids spending under the Recovery Act for casinos,
aquariums, zoos, golf courses, and swimming pools.Projects of a similar nature are also
inappropriate for receipt of Recovery Act funds.

The Office
of Management and Budget (OMB) has issued implementation guidance to Federal
agencies which will be updated and supplemented periodically. (http://www.whitehouse.gov/omb/recovery_default).

The Federal
Acquisition Regulation (FAR) Council has issued five (5) rules to make changes
to the FAR.The interim rules were
published and became effective on March 31, 2009.The new and revised clauses included in the
rules are available for use in contract actions through the Contract Management
Module (CMM).

Furthermore,
automated systems, both internal to NASA and Government-wide, have been created
or modified to support the posting and reporting requirements of the Recovery
Act.They are designed to meet the
accountability and transparency requirements of the Act.

GUIDANCE:

1.General Principles

a.Contracting Officers (COs), in coordination
with the requesting office, shall ensure that requests for contract services to
be funded with Recovery Act funds meet the objectives of the Act, and that
projects funded are based on merit and further the objectives of the Act,
including job preservation, job creation, and economic recovery.

b.The Recovery Act, and all associated
guidance, expresses a clear preference for award of fixed-price, competitive
contracts.COs shall support these
principles and maximize the use of fixed price, competitive contracts, as
appropriate, in awarding contracts that use Recovery Act funding.

c.NASA has established Program Plans and more
specific Project Plans which set forth the Agency’s strategic plan for
allocating and spending Recovery Act funds.

d.Recovery Act funds shall not be utilized on any new contract, order or
modification under which payment is made through the Letter of Credit (LOC)
payment method, except for contracts and orders with the Jet Propulsion
Laboratory (JPL).Should circumstances
arise where Agency plans support using Recovery Act funds on any LOC contract
other than one with JPL, the CO shall request a waiver from this restriction
via e-mail to the HQ Procurement Contract Management Division.

2.Requisition
Requirements

a.The requiring office is responsible for
generating a requisition to initiate a procurement action under the Recovery
Act, and for ensuring that the requisition is consistent with approved Program
and Project Plans.A separate
requisition is required for each Recovery Act action, and a Recovery Act
requisition may not include any requirements or funds for other than Recovery
Act actions.

b. Requisitioners must create Recovery Act
requisitions in the Financial Management System and include the word “Recovery”
followed by the appropriate Contract Line Item Number (CLIN) in the Short Text
Description block at both the Item Overview level and the Item Detail level
(under the services tab.) The requiring office must coordinate with the
CO prior to initiating the requisition in order to obtain CLINs. It is
imperative that the Financial Management System reflect CLINs as they are
identified in the hard copy contractual document and, consequently, on the
contractor’s invoice, to enable proper payment. The requiring office is
responsible for editing all Recovery Act requisitions initiated prior to the
date of this PIC, Rev. C, to include the word “Recovery” and CLIN designations
in the Financial Management system.

c.The requiring office is also responsible for
including a specific description of the supplies or services to be contracted
for pursuant to the requisition.The
description must identify discrete supplies or services that are severable from
non-Recovery Act funded supplies or services. Recovery Act funding may not be used for
incremental funding unless the increment has distinct parameters and the
contractor’s performance of the specific increment is measurable.

-Distinct
parameters mean that the work can be distinguished by a beginning and an
end.If an increment of work under an
existing contract is to be funded with Recovery Act funds, the requiring office
is responsible for establishing a beginning and an end of the Recovery Act
work.Among other options, the beginning
and end may be expressed as dates or as identifiable points of service or
completion.For example, Recovery Act
increments may:

obegin on September 1, 2009 and continue until
December 31, 2009.

obegin following NASA’s approval of a plan or
report, and end upon NASA’sacceptance
of a plan or report.

obegin
when a specific project is 25 percent complete and end when it is 40 percent
complete.

Parameters should be established which ensure that
NASA will be able to examine and evaluate Recovery Act work separate and
distinct from non-Recovery Act work.

-Measurable
performance means that NASA can quantify and judge the quality of service
or production received during the specified increment.Because the Federal Government will be
measuring what it receives for corresponding amounts spent under the Recovery
Act, it is insufficient to say, for example, that NASA received three months of
service.Therefore, the requiring office
is responsible for specifying performance for the incremental period in a
manner that permits evaluation and review of the work performed.For example, measurements for a Recovery Act
increment may include:

○meeting specified milestones between beginning and ending dates.

○successful completion of significant identified activities.

○on time delivery of required reports,
documents, or supplies.

d.In
support of the transparency requirements of the Recovery Act, and in order to
facilitate mandatory reporting requirements, the description must clearly
identify the supplies or services without using technical jargon, Agency-unique
language, or acronyms.The description
should be easily understood by the general public and suitable for public
disclosure.

e.COs are responsible for reviewing the
requisition to ensure that spending is consistent with the intent of the
Recovery Act, but COs may generally rely upon the requesting office for
assurance that the requested acquisition is consistent with approved Program
and Project Plans.COs must ensure that
the CLINs identified in the requisition are identical to the CLINs utilized in
the contract document.

3.Pre-award Considerations; CO Responsibilities

a.Recovery Act funds may not be obligated unless the
contract, order, or modification includes the Federal Acquisition Regulation
(FAR) Recovery Act clauses.If offerors
or contractors refuse to accept the Recovery Act clauses, and hence, Recovery
Act funds, the CO shall notify the HQ Office of Procurement, Contract
Management Division. Notifications should include a brief summary of the
Recovery Act action and the contractor’s objection.Also identify efforts made by NASA to secure
acceptance, CO contact information, and contractor point of contact with
contact information.

b.When making Recovery Act awards, COs shall not combine
multiple requisitions on a single contract action.Each Recovery Act requisition shall result in
a separate contract award, order award, or modification to an existing contract
or order.Any contractual document that
obligates Recovery Act funds must not include any non-Recovery Act funds, or
any Recovery Act funds that were provided via another requisition.

c.FAR 4.1501 identifies
procedures for ensuring that Recovery Act acquisitions are appropriately
identified as such, and that they are distinguished from other, non-Recovery
Act acquisitions. It is a NASA requirement that COs establish specific CLINs to
identify all work on any contract or order which is funded, in whole or in
part, with Recovery Act funds.When
Recovery Act funds are added to existing contracts, COs must establish and
assign CLINs to describe and segregate both Recovery Act requirements and non-Recovery
Act requirements. For new awards that are funded in full with Recovery Act
dollars, establishment of a CLIN to describe and segregate the work will
facilitate later additions of non-Recovery Act funds to the contract, on a
unique CLIN.

d.For contracts that contain NASA Form 533 reporting
requirements, COs shall ensure that the contract contains directions for
contractors to segregate Recovery Act funds from non-Recovery Act funds on NASA
Form 533, Financial Management Reporting.Because segregation of funds is an existing requirement under NASA FAR
Supplement (NFS) Clause 1852.242-73, and NASA Procedural Requirement (NPR)
9501.2, referenced therein, direction to the contractor is consistent with
paragraph (a) of the clause. When adding Recovery Act funds, COs should set
forth detailed reporting categories in the schedule.Directing the contractor to segregate
Recovery Act funds on NF 533 is not viewed as a change as described in
paragraph (e) of 1852.242-73.NASA does
not anticipate any additional charges associated with segregation of Recovery
Act funds on NF 533.

e.COs shall obtain a proposal for each and
every Recovery Act requirement. A proposal is required not only for new awards,
but also for Recovery Act requirements added to existing contracts, even if the
Recovery Act work is work that was covered by the contractor’s original
proposal. COs shall direct offerors or
contractors to submit separate proposals for Recovery Act requirements and
non-Recovery Act requirements. Recovery Act and non-Recovery Act costs cannot
be combined in one proposal. Negotiation documents, which might include a
detailed pre and post negotiation memorandum for large, new awards, or just a
memo to file for modifications to existing awards, shall indicate that pricing
of work to be performed with Recovery Act funds was negotiated or agreed-upon
as a stand-alone effort, and is separately identifiable.COs, in conjunction with the requiring
office, should determine the appropriate level of detail for proposals,
consistent with the contract action.Care should be taken to request only the level of detail necessary,
thereby minimizing bid and proposal costs.

-When Recovery
Act funds are obligated on a new contract or a new order, or on an existing
contract or order for new work, the proposal shall meet the regulatory
requirements for FAR Parts 12, 13, 14, or 15, as appropriate.

-When Recovery
Act funds are added to existing contracts to fund existing work which was
covered by a proposal at time of award, the level of detail should be
sufficient to allow separate pricing of the Recovery Act effort, and to permit
segregation of costs associated with the Recovery Act effort.The purpose of a new proposal, in these
cases, is to ensure that the amount of funding on the Recovery Act line item
accurately relates to the effort defined for that line item. There must be a
relationship between the work and the funding and the contractor must agree
that the relationship is realistic. Through submission of a proposal, the
contractor specifies a realistic cost estimate for the Recovery Act work, and
NASA secures the contractor’s agreement that the Recovery Act work is
realistically funded.Consequently, COs
must request, and contractors must provide, a proposal to price the Recovery
Act modification, but the proposal will usually not be a traditional proposal.
In these cases, COs should generally request basic estimates which resemble
budgetary estimates or consist of general cost information culled from the
original proposal.Likewise, COs may
request contractors to assign general estimates to each of the measureable
tasks in the Recovery Act line item without providing an associated cost
breakdown.As another option, COs may
share NASA’s independent cost estimate for the Recovery Act work with the
contractor and it can serve as the proposal if the contractor affirms that the
estimate is realistic for the Recovery Act work.

f.COs shall create all Recovery Act
contractual documents in the Contract Management Module (CMM).Further, COs shall utilize the PRISM
milestone templates in CMM.NASA’s
ability to track, manage, and report on Recovery Act requirements is enhanced
when NASA can place reliance on its automated systems and leverage the

ability to share information between systems.Automated systems also provide checks and
balances which serve as an oversight mechanism to identify missing, incomplete,
or incorrect actions.CMM’s interface
with the financial management system will facilitate proper implementation of
the Recovery Act.Therefore, it is vital
that documents are created in CMM in accordance with the milestone templates.

g.COs are reminded to make careful and
considered responsibility determinations for companies receiving Recovery Act
funds.Particular attention should be
paid to the Excluded Parties List System (EPLS), which should be checked and
verified several times prior to award to ensure that no parties that have been
excluded from Federal contracting will receive Recovery Act funds.

4.Posting Requirements

a.Posting
of Presolicitation Notices

In accordance with FAR 5.704, COs shall use FedBizOpps (FBO) to post
presolicitation notices for contract actions that will be made using Recovery
Act funds.Contract actions include new contract
awards, new task or delivery orders, and modifications to existing contracts or
orders.Some Recovery Act
presolicitation notices are for informational purposes only, as identified in
FAR 5.704.They serve the transparency
objectives of the Act by notifying the public of anticipated Recovery Act
awards, regardless of whether a presolicitation notice was posted at the time
of original award.Inasmuch as the
Recovery Act includes specific elements for presolicitation notices that are in
addition to the standard requirements for presolicitation requirements, it is
important to carefully follow the instructions in FAR 5.7.

When using NAIS EPS for submitting pre-award
notices to FedBizOpps, using their electronic e-mail interface, COs must select
the radio button that indicates the acquisition is a Recovery Act action and
use the word “Recovery” as the first entry in the title field, prior to the
actual title of the pre-solicitation notice.For reporting purposes, automated systems will use the “Recovery” tag to
pull and identify actions, so it is important to ensure that the word Recovery
appears first and is spelled correctly.The entry/search is not case sensitive.

b. Announcing Contract Awards

In accordance with FAR 5.705, COs must publicize
contract actions that are made, in whole or in part, with Recovery Act funds, by posting an award notice in FBO.Contract actions include new contract awards,
new task and delivery order awards, and modifications to existing contracts and
orders.Recovery Act award announcements
shall be posted as ‘post award notices’ rather than any other type of
notice.The Recovery Act requires that,
if the award is not both fixed price and competitive, the award notice include
the rationale for using other than a fixed price and/or competitive approach.

c.Entering
Data into the Federal Procurement Data System (FPDS)

FAR 4.605(c) provides the requirements for entering
awards made using Recovery Act funds in FPDS.In addition, and because FPDS entry directions are likely to change from
time to time during the course of Recovery Act spending, instructions shall be
prominently displayed on the home page at https://www.fpds.gov.

COs must enter the Treasury Account Symbol (TAS) in
the Description of Requirements field
in FPDS to identify obligation of Recovery Act funds.This applies to original awards, awards of
orders, and to modifications of existing contracts or orders.The TAS should be entered in the following
format:TAS::XX XXXX::TAS.(The acronym TAS followed by two colons precede
the code and two colons followed by the acronym TAS follow the code.)The TAS entry, in this format, must be the
first thing entered in the Description of
Requirements field.The TAS must
precede the description of the contract action.While Recovery Act funds may be added to an existing contract or order,
Recovery Act funds cannot be co-mingled with non-Recovery Act funds for
reporting purposes.Therefore, COs must
record each obligation of Recovery Act funds as a separate entry in FPDS.

OMB has designated five TAS codes for NASA’s use in
obligating Recovery Act funds:

Science,
Recovery Act – 80 0119

Aeronautics,
Recovery Act – 80 0125

Exploration,
Recovery Act – 80 0123

Cross
Agency Support, Recovery Act – 80 0121

Office
of Inspector General, Recovery Act – 80 0116

On reimbursable actions, where other agencies have
provided Recovery Act funds to NASA for obligation on NASA contracts, the
requesting agency should advise the NASA CO of the appropriate TAS code.

In support of the transparency provisions of the
Act, COs must enter clear and concise descriptions of the supplies or services
being procured, avoiding technical jargon and Agency-specific language and
acronyms.Furthermore, COs should take
extra care to ensure that the competition information entered in FPDS matches
competition information identified in FBO.

5.Reporting
Requirements

a.Contractors that receive Recovery Act funds are required to report on
the use of the funds quarterly.Accordingly, a new FAR clause, 52.204-11, has been created.The clause is available in the Contract
Management Module (CMM).COs must
ensure that all solicitations, contracts, or orders that include Recovery Act
funds also include the clause.If
contractors refuse to accept the clause and Recovery Act funds, COs must notify
the HQ Office of Procurement, Contract Management Division.The clause requires contractors to utilize
the tool at www.FederalReporting.gov to report first-tier subcontracts,
executive compensation, and jobs created or retained, work progress, and amount
invoiced, among other things.The
Federal Reporting website is publically available and the information reported
by Federal contractors will serve to provide transparent information on the use
and effectiveness of Recovery Act funds.

b.Consistent with accountability and
transparency requirements of the Act, the reporting requirements apply to
Commercial Off-the-Shelf (COTS) items, Commercial item purchases, Simplified
Acquisitions, and Sealed Bid awards, in addition to negotiated awards made
pursuant to FAR Part 15.

c.Compliance with the reporting
requirements of FAR 52.204-11 is a contract requirement, and non-compliance may
be grounds for withholding payment, or invoking other contractual remedies.Given the Recovery Act’s commitment to
transparency, and the detrimental impact non-compliance with reporting has on
transparency, withholding of payment may be a necessary tool to effect
compliance and promote transparency.Inasmuch as most of the Agency’s Recovery Act actions do not include a
separate price for the reporting component, any withheld amount must be
reasonable and associated with the value of the reporting effort.COs should consult with legal counsel when
considering withholding of payment as a contractual remedy on Recovery Act
actions.Because of the uncertainties
associated with the system and the reportable data elements for the first
reporting period, October, 2009, COs should not withhold payment for non
compliance with the reporting requirements in this initial period, unless the
contractor willfully refuses to comply.

d.To assist contractors in completing their report,
contracting officers are responsible for providing the following data elements
to the contractor.The data elements
should be provided in writing via a letter, or e-mail, or “Quick Reference
Card” which may be developed at the Centers.It is also acceptable to identify the correct entries for the following
data elements directly in the award document if they are clearly presented in
summary fashion so that the contractor is not required to search throughout the
award document to identify the individual data items.The goal underlying the requirement for the
CO to provide the contractor with this information, most of which is otherwise
available to the contractor, is to decrease errors.Therefore, COs should bear this goal in mind
when communicating with the contractor and convey the information in the
simplest and most easily recognizable form that will facilitate accurate
reporting.

i)Award Type (inform contractors that they must
select, from the pull down menu, the reporting option for “Federally Awarded
Contract;”

(x)Amount of Award (the total amount of Recovery
Act funds obligated);

(xi)
North American Industrial Classification System (NAICS), known as “Activity
Code” at http://www.Federal Reporting.gov; (the six character NAICS code
specific to the solicitation which may not necessarily be same as the
contractor’s self-described NAICS code.

(xii)
Program Source (Treasury Account Symbol (TAS)) Code (format will be two digits,
a space, and then four digits.See
paragraph 4.c of this PIC for NASA’s TAS codes by program.

(xiii) Sub Account Number for
Program Source (TAS) Code, if applicable (format, if applicable, will be three
digits).NASA contracts will not have
sub account numbers.

e.Contractors are responsible for obtaining
their congressional districts.The reporting
system will prompt the contractor for both their physical locale congressional
district and the primary place of performance congressional district.While COs are not required to provide contractors with their
congressional districts, COs, while compiling the information in d. above,
shouldcheck FPDS for congressional
district numbers, both locations, and work with the contractor to ensure that
congressional districts reported for Recovery Act are consistent with the award
document and FPDS.

f.As the second reporting period (Jan. 2010)
looms, reporting requirements are continuing to evolve and changes to the
FederalReporting tool continue to be made.The FAR rule is in the process of being revised, and a second interim
rule is expected to be published before the third reporting period.Consequently, we anticipate that questions
will arise throughout the reporting cycle.

NASA
has established a Recovery Act reporting help line which will serve as the
first point of inquiry for reporting questions or concerns.Inquiries should be submitted via e-mail to:

HQ-Recovery-Recipient-Reporting@mail.nasa.gov.This line is available to Agency personnel and contractors.If you refer contractors, please ask that
they identify the Center and the CO in their message.That way, the CO can be included in the
response and have a record of the advice provided to the contractor.

Further, the FederalReporting.gov website is
staffed with a helpdesk which may
be utilized by Agency personnel and contractors to obtain information on reporting
requirements and the reporting system.Contact information is on the home page at FederalReporting.gov.Frequently Asked Questions (FAQs) have been
developed and are continuously updated.They are posted on the Office of Federal Procurement Policy website
athttp://www.whitehouse.gov/omb/recovery_faqs_contractors/.Federal Reporting.gov has a link to the OFPP
site.Likewise, the NASA Procurement
Knowledge Management Portal has a link to the OFPP site.Agency personnel are encouraged to consult these
sources for answers to specific reporting questions as the Recovery Act
reporting requirements are rapidly evolving.

Further, COs are responsible for validating the accuracy of contractors’ reports.However, contracting officers are not required to validate data for which they would not normally have supporting information, such as the compensation information required of contractors and first-tier subcontractors.The contracting officer is responsible for informing the contractor of any inconsistencies with the award, significant errors, or material omissions and requiring that the contractor correct the report. Contracting Officers will be supported in this activity by others in accordance with the process set forth in Enclosure 1 to this PIC.

a.Contracts,
orders, and modifications that are funded with Recovery Act dollars are subject
to audit and examination, consistent with the accountability and transparency
requirements of the Recovery Act.The
FAR previously provided audit rights for certain types of contracts.Where that right did not previously exist,
changes have been made to existing clauses to add an alternate that addresses
audit rights for Recovery Act contract actions.

b.COs must ensure
that any contract that includes Recovery Act funds, includes the appropriate
clause to provide audit rights:FAR
52.212-5 (Commercial Items), 52.214-26 (Sealed Bidding) and 52.215-2
(Negotiation).COs shall modify, on a
bilateral basis, in accordance with FAR 1.108(d)(3), existing contracts to
include the FAR clauses (Alternates) for future orders, if Recovery Act funds
will be used.In the event that a
contractor refuses to accept such a modification, the contractor will not be eligible
for receipt of Recovery Act funds.

c.In order to prevent fraud, waste, and abuse
of Recovery Act funds, the FAR has been amended to provide for agency
Inspectors General and the Government Accountability Office (GAO) to review
concerns raised by the public.Therefore, the clauses cited above which provide audit rights have also
been revised to provide for the right of IG and GAO to have access to
contractor and first-tier subcontractor personnel.

d.Likewise, FAR 3.9 has been added to provide
whistleblower protections for contractor employees who report ‘covered
information’ related to use of Recovery Act funds.A new FAR clause, 52.203-15, requires
contractors to post notice of employee whistleblower protections.COs must ensure that this clause is included
in all contracts that obligate Recovery Act funds.

7.Construction Contracts

a.The Recovery Act requires that any
construction project funded with Recovery Act funds be in the US and outlying
areas.Definitions and limitations are
set forth in FAR 25.6.

b.New FAR coverage has been added at FAR 25.6
to specify the application of the Buy American Act to construction projects
funded with Recovery Act funds.The
Recovery Act provides a strong preference for American-made materials by
mandating use of evaluation factors designed to favor awards to firms offering
domestic materials.

c.For all Recovery Act contract actions, it is
important that Recovery Act funds not be comingled with non-Recovery Act funding.This is particularly important in
construction contracts where Recovery Act funds are expected to be added to
existing contracts.In order to meet the
accountability requirements of the Act, the new work should be separately
identifiable and able to be segregated from prior work funded with non-Recovery
Act funds.

d.Contract provisions and clauses are provided
at FAR 52.225-21, -22, -23, and -24 to specify a requirement for domestic iron,
steel, and manufactured goods in construction contracts, and to address Trade
Agreements when foreign-made materials are proposed.These provisions and clauses must be included
in any construction contract which obligates Recovery Act funds.The provisions and clauses are available in
CMM.

e.COs are reminded that the Davis-Bacon Act
applies to Recovery Act construction contracts, regardless of dollar
value.The Recovery Act specifies that
all laborers and mechanics, employed by contractors and subcontractors on
projects funded, in whole or in part, with Recovery Act funds, shall be paid
wages at rates not less than those prevailing on projects of a character
similar in the locality as determined by the Secretary of Labor.

8.Communications with Lobbyists
and Other Interested Parties

The Office of General Counsel has issued separate guidance
regarding communications with Registered Lobbyists and Other Interested Parties about Recovery Act
funds.The guidance is available from the HQ Office of General Counsel.

9.Invoicing Procedures:

The Office of Procurement has developed suggested language
which sets forth instructions to contractors for submitting invoices for
contract work funded with Recovery Act money.COs shall include specific Recovery Act invoicing instructions in all
Recovery Act contract actions, worded substantially as follows:

In addition to the
requirements set forth in any payment and invoicing clauses contained within
the contract, the following special requirements apply to those contracts with
work authorized under the American Recovery and Reinvestment Act (ARRA) of 2009
(herein after referred to as the Recovery Act).

-All requests for payment for work performed
subject to the Recovery Act shall be submitted separately from requests for
payment for any other work performed under the contract.

-All requests for payment for work on
contracts, funded in whole or in part, with Recovery Act funds, shall identify
the applicable Contract Line Item Number(s) (CLINs) associated with the
supplies or services being invoiced.

-All invoices/vouchers shall be submitted via
e-mail with no more than one invoice/voucher per e-mail submission.Invoices shall be submitted to NSSC-AccountsPayable@nasa.gov.

- The NASA Shared Services Center is the
Designated Billing Office for Recovery Act invoices, except for cost type
contracts where DCAA is designated as the billing office for verification of
vouchers. (COs should tailor the language in this bullet to identify the
appropriate DBO for the specific Recovery Act requirement.)

10.Prohibition on the use of the
Governmentwide Commercial Purchase Card for purchases funded with Recovery Act
appropriations

Recovery Act funds are
provided to support distinct NASA projects which will preserve and create
jobs, further scientific and technological advances, and.
stimulate the economy. These actions are best supported through
contracts or grants, not purchase card transactions. Additionally,
implementing Recovery Act reporting requirements necessitates collecting
detailed information on expenditures, items purchased, recipients, and
performance which is not normally tracked for purchase card
transactions.

Purchases using Recovery
Act funds shall be placed using the appropriate purchasing vehicle,
e.g., purchase order, task order, etc. by COs within the Center’s
procurement office. The CO is responsible for ensuring purchases
using Recovery Act funds are placed in accordance with the requirements of
this PIC and are recorded in FPDS.

11.Evolving Guidance

a.Federal
implementing guidance for the Recovery Act is being reevaluated on an ongoing
basis and will be revised periodically.This PIC will be updated as necessary to reflect changes made by Federal
offices as well as changes made internally to NASA procedures.

b.The
Integrated Acquisition Environment (IAE) program has committed to posting the
most current direction related to reporting under the Recovery Act at the
various websites including Recovery.gov, FederalReporting.gov, FedBizOpps and
FPDS.COs are encouraged to visit the
sites for current direction. To the extent that the websites specify
instructions that differ from those in this PIC, the website’s instructions
supersede the instructions in this PIC.

NASA Process for
Reviewing Contactor Reporting under the Recovery Act.

1.In accordance with
FAR 52.204-11, and supplemental Federal Register Notices and Office of
Management and Budget (OMB) guidance (see references below), recipients of Recovery Act funds are
required to report quarterly, beginning in October, 2009 at
FederalReporting.gov.Thereafter,
reporting months are January, April, July, and October for the immediately preceding
quarter or until the recipient
has completed all efforts funded with Recovery Act funds.The procedures herein apply to Federal contracts funded in whole or in
part with Recovery Act funds.Procedures
for grants and cooperative agreements are set forth in Grant Information
Circular (GIC) 09-03.

2.A NASA Mailbox has been established
as the first point of inquiry for Recovery Act reporting questions and
issues.The address is:

HQ-Recovery-Recipient-Reporting@mail.nasa.gov.In addition, a Federal help desk has been established to support
FederalReporting.gov and the help desk may be utilized for information and
direction for Recovery Act reporting.Additionally, the Office of Federal Procurement Policy (OFPP) has
developed a series of Frequently Asked Questions (FAQs) to respond to reporting
issues.They are available at: http://www.whitehouse.gov/omb/recovery_default.Because the system and the requirements are
new, there are many uncertainties.OFPP,
in conjunction with the FAR
Council, is responding to emerging issues quickly by continuously
updating the FAQs.The FAQs will be
version-controlled so you will be able to identify when changes and additions
are made, and also which guidance was in effect at a given point in time.If you receive inquiries from contractors
regarding reporting, they should be referred to these sources.

3.Because the FAR rule was issued
before FederalReporting.gov was developed, the role of contracting officers
(CO) and other agency reviewers in ensuring Federal contractor compliance with
the requirements of FAR 52.204-11, is evolving.CO and contractor
responsibilities will be further defined through a second interim, and
ultimately a final rule.The second
interim rule is expected before the third reporting period.

4.Agencies are required to review
contractors’ reports for:

- consistency with award information,

- significant errors, and

- material omissions

A significant error is defined
as data that is not reported accurately and where such erroneous reporting
results in significant risk that the public will be misled or confused by the
contractor’s report.Examples include,
but are not limited to:

- the cumulative invoiced amount reported
is in excess of the obligation

- the Recovery Act obligation was for a
relatively small amount and the contractor reports the number of jobs created
or retained as an unrealistically high number.

A material omission is defined
as data that is not responsive to a specific data element.When reviewing for material omissions, agency
reviewers should do so with the goals of transparency in mind.For example, where the contractor is required
to provide a narrative description, is it sufficiently clear to facilitate
understanding by the general public?

5.In
addition to reviewing contractors’ reports, COs are responsible for ensuring
accuracy and validating
contractors’ entries.COs shall notify
contractors if the Agency review finds gross errors, material omissions, or
entries that are otherwise inconsistent with the award.The schedule and the process for review and
notification are further described below.

6.Contracting Officers are the Agency officials responsible for reviewing
and providing comment on contractor Recovery Act reports.COs will be supported in this effort by COTRs,
the Accounts Payable office (NSSC), and others, as needed.All Agency personnel who play a role in
Recovery Act reporting shall register at FederalReporting.gov.Registration should be accomplished
immediately so that the system can be accessed on the first day of the
reporting period.

The
HQ Office of Procurement, Analysis Division will be responsible for running a
series of reports, during the month immediately preceeding each reporting
period, and into the reporting period, that identify contractors that have
received Recovery Act awards but are not registered at FederalReporting.gov,
and for providing those reports to the cognizant COs.COs shall contact the identified contractors
and encourage them to register early.COs shall provide assistance to contractors in completing the
registration process.

7.COTRs
will provide the CO with a quarterly report addressing data elements m, and p –
r, in paragraph 9.The Accounts Payable
Office will provide the CO with input addressing item v. in paragraph 9.These responsibilities, along with the
communication process, are further defined below.Additionally, COs may request input or
assistance from any other Agency sources as may be helpful to respond to the
specific circumstances of any given action.

8.In each of the
reporting months, the following schedule applies:

-Day 1- 10 Contractors
prepare and submit their reports

-Day 11 – 21

- Reports become available for
agency viewing in Federalreproting.gov, and contractors may continue to make corrections.

- Agencies
may begin their review of contractor reports.

- On day 15,
the contractors’ reports will become publicly available at Recovery.gov

-Day 22 – 26Agency review and comment period

-Day 22 – 29Contractors
may again edit their report if the Agency ‘reviews with comments’

p.Award description:a description
of the overall purpose and expected outcome, or results of the contract, or
action under the contract, funded by the Recovery Act, including significant
deliverables and, if appropriate, associated units of measure.**

q.Quarterly activities:A
description of all significant services performed and/or supplies delivered,
including construction, for which the prime contractor invoiced in this
calendar quarter.**

r.Project status:The status of the
work completed.Contractor will select
from 4 options:not started, less than
50 percent completed, completed 50 percent or more, or fully completed.**

s.NAICS*

t.Estimate of the combined
number of jobs created or retained, calculated quarterly.(Information on how to calculate
jobs may be found at Frequently Asked Questions (FAQs) for Federal Contractors
at http://www.FederalReporting.gov)****

u.Amount of award (Recovery Act obligation)*

v.Total Recovery Act funds invoiced(cumulative)***

w.Primary place of performance (city, state and congressional district) *

x.Names and total compensation of each of the five most highly compensated
officers (reporting required if conditions apply- see FAR 52.204-11.To determine if the public has access to the compensation information,
see the U.S. Security and Exchange Commission total compensation filings at http://www.sec.gov/edgar/searchedgar/companysearch.html)****

y.Total number of sub awards to individuals****

z. Total number of sub awards less
than $25K****

aa. First tier subcontract
information****

-
subcontractor’s DUNS number (for subcontracts of $25K or more) ****

-
award number****

-
subcontractor’s name****

-
subcontractor’s physical address****

-
subcontractor’s primary place of performance****

-
subcontractor’s congressional district****

-
amount of subcontract****

-
date of subcontract****

-
subcontractor’s parent company****

- compensation
information, name and total compensation for each of the five most highly
compensated officers of the subcontractor.(reporting required if conditions apply.See FAR 52.204-11)****

*

COs can verify these data elements from file and/or FPDS

**

COTRs will provide CO with information to review these data elements.

***

Accounts Payable (NSSC) will post information on disbursements to
their website for CO use in reviewing this element.

****

Specific information not available to Agency personnel.CO will check that contractor entries
appear reasonable.

10.Based on the
above requirements and schedule, the following procedures are established to
ensure that contractor Recovery Act reports are appropriately reviewed, and
that gross errors and significant omissions are identified and reported for
correction.

a.On the first business day of each reporting month (Oct, Jan, April, and July) the

Contract Analysis Division of the
HQ Office of Procurement is responsible for running and distributing an FPDS
system report (hereafter referred to as ‘The Master Quarterly Reporting List’
or the ‘Master List’) which identifies all NASA contracts/contractors required
to report that period.The Analysis
Division shall also check that contractors appearing on the Master Quarterly
Reporting List are registered at FederalReporting.gov.If they are not, that information should be
included on the Master Quarterly Reporting List before it is distributed.

Note that FPDS posts
a daily report on Recovery Act awards that allows filtering by contracting and
funding agency and contracting office. As more and more Recovery Act awards are being
made, searching by contractor DUNs number is one of the most effective means of
locating a contract.

The Contract Analysis Division
shall distribute the Master Quarterly Reporting List, by the fifth business day
of the month, to:

-Procurement Officers (through the Procurement
Officers’ distribution list) who will then ensure further distribution to all
COs with Recovery Act actions.

-Mission Directorate POCs

-NSSC

-HQ Recovery Act Team

-Center Recovery Act POCs

b.Contracting Officers are responsible for distributing the Master
Quarterly Reporting List to all COTRs appointed on their Recovery Act
contracts.

c.During days 1 – 10, while contractors are reporting at Federal
Reporting.gov, the COTR should provide the contracting officer with brief
status reports on progress, and quarterly activity. COTRs should provide
information that will permit the CO to review contractor’s entries for those
data elements identified in paragraph 9 by two asterisks.NSSC, during days 1 – 10, will post Recovery
Act disbursement information to https://www.nssc.nasa.gov/portal/site/customerservice/menuitem.8c0cf94258aa985b48969daf4dd72749/which COs (except those at NMO/JPL[1])
will use to determine the reasonableness of contractors’ entries on the element
in paragraph 9 marked with three asterisks.It is important to note that contractors are required to report amount
invoiced to date, and the information posted by NSSC will be
disbursements.Therefore, the amounts
are not expected to match, but taking into consideration a 30 day payment
cycle, CO will have the information necessary to conclude whether a
contractor’s entry includes a gross error or material omission. There is no
mandatory format for the status reports.It is anticipated that experience during the early reporting periods
will result in the development of templates to ease the status reporting
activity.

d.On day 11, or as soon thereafter as practical, COs shall review their
contractors’ reports at FederalReporting.gov.COs shall utilize the award information, FPDS and other system
information, as necessary, and the status reports from the COTR and web posting
by NSSC/Accounts Payable Office to review and determine the accuracy of the
contactor’s entries.

Also, beginning on day 11 and continuing until after the
system close at the end of the reporting period, the Analysis Division of the
HQ Office of Procurement will run system reports to monitor recipient reporting
and Agency review and validation.The
reports will be provided to the Recovery Act Implementation Executive, and to
the cognizant COs.

COs should utilize days 11 – 21 to notify the
contractor, outside of the FederalReproting.gov system, of any gross errors or
material omissions. This period is considered an open communication period,
during which the CO works with the contractor to ensure that the posted
information represents an accurate picture of the Recovery Act project and its
current status. The contractor has the
ability, during days 11 – 21, to make edits to their original entries, but is
not required to make changes in response to Agency comments.After the 21st, the contractor’s
report is locked.

e.Between day 22 and day 26, the CO shall complete the Agency’s official
review of the contractor’s report in the FederalReporting.gov system.COs will be presented with three choices:

Reviewed, no
comments,

Reviewed with
comments, or

Not reviewed.

It is NASA policy that all contractor
Recovery Act reports will be reviewed.Therefore, only the first two options are available to COs.

f.It is anticipated that the communication process that took place between
days 11 - 21 was successful and that all necessary edits were made prior to day
22. Therefore, in the majority of cases, the CO shall assign the status:

Reviewed,
no comments

This is the appropriate selection
even if the Agency had ‘unofficial’ comments earlier in the process and
conveyed them to the contractor outside of the system. If, on day 22, the
contractor’s report has no gross errors or material omissions, and if it
accurately portrays the award information, then the official Agency remark
should be ‘reviewed, no comment.’

g.If, on day 22, the contractor’s report contains what are considered to
be gross errors or material omissions, or if it is otherwise inconsistent with
the award data, then COs shall assign the status as:

- Reviewed, with
comments

This selection will allow the CO to
enter summary level remarks.Agency
remarks must be accurate and should be aimed at clarifying the public record by
making note of contractor entries that may be unclear or misleading.The purpose of the Agency comments is to
ensure that when they are considered together with the contractor’s entry, the
information accurately informs the public and provides transparency which is a
key element of the Recovery Act.

To facilitate oversight and trend
analysis at the Agency level, it is important to maintain and evaluate a record
of how frequently and on what issues NASA is ‘reviewing with comments’.Therefore, if the CO ‘reviews with comments’,
a copy of the comments shall be provided, before they are posted to FederalReporting.gov, via
e-mail, to:Julie.A.Pollitt@NASA.gov and Leigh.Pomponio@NASA.gov.The FederalReporting.gov system will
electronically deliver all Agency remarks to the Recovery Accountability and
Transparency Board.The Board may make
the Agency remarks available for public viewing on Recovery.gov

If the CO selects ‘reviewed, with
comments’, the system unlocks the contractor’s report and allows further
editing by the contractor.Contractors
are encouraged to respond to official agency comments, and have until day 29 to
do so. If the contractor makes edits during this period, the status of the
report in the system will automatically change from the ‘reviewed with
comments’, as assigned by the CO, to ‘reviewed and resubmitted.’ Therefore, if
the CO ‘reviews with comments’, it is important to go back into the system to
see if the contractor has ‘reviewed and resubmitted’.If they have, and assuming the CO is now
satisfied with the record, the CO shall enter ‘reviewed, no comment’ at this
point.Such an action locks the report
from further changes and ensures that the report that is displayed publically
on Recovery.gov accurately reflects that the Agency has no outstanding issues
with the contractor’s report.

COs shall notify the Recovery Act Implementation Executive,
Julie Pollitt, of any Agency comments that remain unresolved at the close of
the reporting period.At the close of
each reporting period, the Procurement Office, Analysis Division, shall run a
master report showing all Agency entries for the reporting period.Further, the Analysis Division shall run a
report identifying all NASA contracts which indicate either ‘not reviewed’ or
‘reviewed with comments’.These reports
are to be provided to the Recovery Act Implementation Executive.

The system does not require the
contractor to make corrections based on Agency review, or otherwise require
Agency approval of the report before it is finalized in the system.In all instances in which the Agency makes
comments on contractors’ reports, either during the informal communication
period, or during the formal system comment period, COsshall ensure that the contract file is
documented with a record of the comments, a summary of the communications and
final disposition or resolution.

h. It is NASA policy that all
contractor Recovery Act reports be reviewed.If the CO does not select either ‘Reviewed, no comments’, or ‘Reviewed
with comments’, the system will default to ‘Not reviewed’.Therefore, it is mandatory that COs select
one of the two options.While the Board
may choose to make Agency comments available for viewing in Recovery.gov, at a
minimum, the Agency status assignments will be publically displayed.COs should make every effort to avoid a
system default to ‘Not reviewed’.

11. Please contact Leigh Pomponio, NASA HQ Office of
Procurement, with any questions on this process.